Drew Clark: How the rule of law resolves differences among courts on marriage

Published: Sunday, July 6 2014 4:21 p.m. MDT

Updated: Sunday, July 6 2014 4:21 p.m. MDT

June 26, 2013 — Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington.

J. Scott Applewhite, Associated Press

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SALT LAKE CITY — The purpose of constitutional government, according to our second president, John Adams, is to establish “a government of laws and not of men.” Our nation lives up to this rule-of-law aspiration when all citizens — including lawmakers and judges — are subject to articulable principles grounded within the Constitution, the “supreme Law of the Land.”

Our legal system has developed sophisticated rules for resolving disagreements that test the limits of the Constitution. Currently, there is widespread disagreement in our country about the definition of marriage. That disagreement has been exacerbated by the 10th U.S. Circuit Court of Appeals ruling, on June 25, that Utah “may not deny the issuance of a marriage license to two persons” who are of the same gender.

Of the three judges ruling on the case, two supported the view that the 14th Amendment to the Constitution (which was ratified in 1868) requires same-sex marriage. One judge dissented. Because the Supreme Court previously stayed a lower court decision on gay marriage in Utah, the 10th Circuit also stayed its decision until the Supreme Court reviews the matter.

Gov. Gary Herbert and Attorney General Sean Reyes have vowed to appeal. They argue that the Constitution leaves decisions about marriage to the states. They are currently considering whether to ask the entire group of 11 judges on the 10th Circuit to review the decision “en banc,” or to go directly to the Supreme Court and ask them to hear their appeal.

Some in Utah have said that the Supreme Court wouldn’t take the controversial case. “They look for opportunities to reconcile circuit splits," Salt Lake Rep. Brian King recently told the state solicitor general. "If you never have a circuit split, do you really think the (Supreme Court is) going to take it? I don't think so."

But now — as of June 25 — there is a circuit split on this constitutional question. Although acknowledged by few commentators examining the same-sex marriage debate, eight years ago the 8th Circuit Court upheld Nebraska’s constitutional amendment defining marriage as a union of a man and a woman. The 3-0 decision in Citizens for Equal Protection v. Bruning specifically rejected the claim that the Equal Protection Clause of the 14th Amendment required the state of Nebraska to recognize the union of a man and a man, or of a woman and a woman.

Can contradictory holdings — that Utah is required to permit gay marriage, while Nebraska is not — exist at the same time? No, they cannot. To make this point, however, is not to say that every state’s marriage laws must be exactly alike.

Two weeks ago, I wrote, “a pluralistic, state-by-state solution … is the best remedy to tackle what is otherwise intractable.” This federalism-based approach permits the citizens to redefine state marriage laws at the ballot box. Maryland, for example, has done this.

But on matters of federal law, including the interpretation of the “supreme Law of the Land,” the rule of law requires that we consult the Constitution, and not our personal political or moral beliefs. It cannot be the case that the 14th Amendment requires Utah to do exactly that which Nebraska need not. Indeed, the two circuit courts differ on the very question of whether same-sex marriage is a “new right” (8th Circuit says yes) or the same “right to marry” that has existed for centuries (so says the 10th Circuit).

Which of these two decisions is more binding? They are equally binding. The 8th Circuit decision applies to the states of Arkansas, Missouri, Nebraska, North Dakota, South Dakota — plus Iowa and Minnesota, which have adopted same-sex marriage by legislation. The 10th Circuit decision, although stayed, would be binding on the states in the neighboring circuit, including Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.

A government of laws and not of men follows a Constitution, a written text that can be examined by all. Laws that are passed, and which are not unconstitutional, are to be enforced by executive branches (federal and state) and by the judiciary (again, federal and state). And when disputes about the interpretation of the Constitution rise to the men and women on the Supreme Court — as they occasionally do — justices are not free to disregard established court precedent.

Following the rule of law may be messy, conflict-laden and prone to interpretation, but it isn’t arbitrary. We couldn’t have self-government without it.

Drew Clark is opinion editor of the Deseret News.

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